No decision on Casey’s store, yet

By Nathan Thompson nthompson@examiner-enterprise.com

Wednesday

Feb 28, 2018 at 12:01 AMFeb 28, 2018 at 8:08 AM

Washington County District Judge Curtis DeLapp heard arguments Tuesday morning in a civil lawsuit filed by the Forest Creek Owners Association against the city of Bartlesville regarding rezoned property to allow the construction of a Casey’s General Store on the southwest corner of Nowata Road and Madison Boulevard.

Tuesday’s hearing was originally to hear a motion from the plaintiffs to amend the original petition and a motion for summary judgment by the defendants.

Attorney Johnny P. Akers, who is representing Forest Creek, argued the plaintiffs should be able to amend the original petition since DeLapp allowed Casey’s General Store to be added as an intervening party on behalf of the city of Bartlesville. Akers said the amended petition added allegations against both Casey’s and the city, including abuse of process, an open records violation and collusion.

“The original petition contained no allegations against Casey’s because they were not part of the case at the time,” Akers told DeLapp. “The amended petition goes into more detail about the mistreatment of Forest Creek residents by both the city of Bartlesville and Casey’s.”

Attorney Jess M. Kane, who is representing Casey’s, argued the intervention in the case by Casey’s was done because the property rights of the company are impacted by the lawsuit. He alleges Akers intentionally delayed sending information about the amended petition to his firm, saying Akers is providing undue delay in the case, operating in bad faith, displaying undue prejudice and is doing so as a dilatory motive.

“We made several requests to receive a copy of the amended petition, but it wasn’t until we filed a motion for summary judgment that the amended petition was supplied to us,” Kane said. “The amended petition does not include any new allegations against Casey’s, but adds Casey’s as a defendant. All of the new allegations are against the city of Bartlesville. Those allegations against the city should have been in the original petition, not just added to the amended one because Casey’s is intervening.”

Kane went on to allege that accusations of collusion between the city of Bartlesville and Casey’s are false, but it is also not something that Oklahoma law allows relief for in civil cases.

DeLapp will take the motions into consideration and come back with a decision during a hearing at 1 p.m. March 13.

Forest Creek Condominiums are located directly west of the planned convenience store. Members of the owners association are seeking a declaratory judgment against the city in Washington County District Court, claiming the city of Bartlesville violated due process of law when the property for the Casey’s General Store was rezoned from “O (Office)” and “RS-10 (Single Family Residential)” to “C-3 PUD (Commercial)”.

According to the original petition, the plaintiffs allege the city of Bartlesville’s Planning Commission failed to provide “adequate notice” prior to action being taken on the rezoning and that the notice of hearing was “defective in identifying the zoning regulation and the variance from the regulation.” The plaintiffs are asking the court to invalidate the Nov. 6 decision by the City Planning Commission which recommended rezoning.

Additionally in the original petition, the plaintiffs say that a letter was sent to the city of Bartlesville in July 2017, directing “all future notice and correspondence” related to public meetings about the rezoning of property for Casey’s General Store to be sent to the Akers. The plaintiffs allege the city of Bartlesville failed to send notices to Akers.

In a third cause in the original petition, the plaintiffs are asking for damages from the city of Bartlesville, alleging the members of Forest Creek Condominiums will not be able to enjoy “reasonable use” of their property because of the change in zoning after residents purchased their condos.

The petition does not identify what specific monetary damages the plaintiffs are seeking.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.